Filibuster Reform Ends With A Whimper: How It Fell Apart

For true believers, filibuster reform was about making it painful, if not impossible, for a Senate minority to obstruct governance by the majority. But it didn’t come anywhere near that, leaving reformers deeply disappointed.

The final agreement reached by leaders Harry Reid and Mitch McConnell and passed overwhelmingly by the Senate Thursday evening did not weaken the filibuster. It essentially served to move uncontroversial Senate business more quickly. Democratic senators roundly backed it — even the ones who were eager to end silent filibusters. Republicans didn’t object either.

How did it all fall apart?According to conversations with pro-reform Democratic aides, party leadership sources and outside opponents of the filibuster, Reid’s main goal was ultimately not to weaken the 60-vote threshold that reformers desperately wanted to change. Instead his objective was to eliminate mandatory gaps between votes in order to move legislation and nominees that have cleared a filibuster more quickly — which he achieved.

For reformers, the beginning of the end was Thursday of last week.

One outside pro-reform source told TPM that Sen. Jeff Merkley (D-OR) called him that day to say that despite all his efforts, the “talking filibuster” proposal he championed was essentially dead — that Democratic leadership relayed to him that it didn’t have the votes.

At that point, reformers knew their best hope was that Reid’s negotiations with McConnell would fall apart and he would move forward with still-substantial changes that would have flipped the burden from a majority seeking to advance legislation and nominees to a minority seeking to filibuster them. Reid expressed support for that approach in mid-January.

In hindsight, proponents of reform inside and outside the Senate doubt that Reid was ever willing to use the constitutional option to change the filibuster with 51 votes, despite his claims, and believe he used the threat to gain leverage over McConnell.

“I especially got that sense over the weekend when I had a conversation with [Sen. Chuck] Schumer on Sunday and kept asking him about the constitutional option,” the outside source said. “He got emphatic and said, ‘Harry’s reticent to do it.’ He said that twice and poked me in the chest.”

On Tuesday, Merkley tried to nudge the majority leader in that direction. It didn’t work. Democratic leadership aides leaked that Reid called out Merkley during a conference meeting for violating the trust of senators by naming names to outside activists.

A Democratic leadership aide told TPM that “whether you wanted more or not, Reid got virtually everything he has said he wanted.” The aide pointed to examples of the majority leader saying his goal was to make the Senate operate more efficiently.

Reformers in and out of the Senate believe that Reid tapped into their enthusiasm to advance his goal. “Reid said he wants to make it easier to move on bills,” said a pro-reform aide. “This doesn’t do that. He still has to negotiate with McConnell to get on a bill. It’s a negligible difference to how the Senate operates today.”

The outside reform source accused Reid of “a total 180 reversal.”

“Everything we were seeing led us to believe … that he was very serious about including [the shifting of the burden component],” the source said. “But that all hinged on him using the constitutional option, which I don’t think he ever really intended to do.”

Staffers wary of the “nuclear option” countered that using a partisan vote to dramatically change the rules of a body so deeply rooted in tradition would have led to a meltdown in the Senate and given Republicans political cover for absolute obstruction of President Obama’s second-term priorities on immigration and gun control.

In the end, not even Merkley rebelled against the incremental steps taken in the final deal. He voiced disappointment late Thursday that it did not go further and vowed to “explore stronger remedies” if it does not end Senate paralysis.

Republican senators didn’t voice any objections to the deal after it was announced.

The new rules will streamline the process for passage of bills after 60-vote cloture is invoked and makes it easier to confirm sub-cabinet and district court nominees. Reformers see it as a baby step in the right direction — a pyrrhic victory.

“But it should not be called filibuster reform,” the outside pro-reform source said. “It’s in no way, shape or form filibuster reform.”

ABOUT THE AUTHOR

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.